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Bacquet on Public Funding and the Autonomy of Faith Schools

Last November, the Mattone Center co-hosted a regional conference of the International Consortium for Law and Religion Studies. The conference, “Education, Religious Freedom, and State Neutrality,” brought together scholars and jurists from the United States and Europe to compare approaches to these subjects in their respective countries. Participants were invited to submit short reflections. Sylvie Bacquet (University of Westminster) submitted the following reflection, which we are delighted to publish here.

Public funding of religious schools depends largely on how religion is positioned within each state’s constitutional framework. While some countries such as the UK, Belgium or Canada accommodate faith schools within a state funded structure, others such as France and the US have constitutional restrictions linked to secularism models. There are different levels of funding but usually, higher levels of funding come with increased state regulation. Such regulation may limit the autonomy of faith schools to admit pupils solely on the basis of the school’s religious ethos. This paper examines the extent to which receiving public funding may limit a faith school’s freedom to filter the admission of students according to their religious affiliation. Particular attention is given to the specific examples of England and France given that their church-state relations systems are at polar opposites and affect school funding radically differently. I will argue that while state funding places limitations on the autonomy of the religious school, it also ensures a level of oversight which protects against discrimination, preserves children’s autonomy and protects the right to education.

The UK Context – state funding with relative autonomy

The UK education system is rooted in the establishment of the Church of England. As a result, one third of state-funded British schools have a religious character. While the majority are Christian, a growing number represent other denominations including Judaism, Islam, Sikhism and Hinduism. These schools benefit from certain exemptions in relation to admission of pupils and staff and when oversubscribed can use faith as an admission criterion, therefore prioritizing applicants of their own faith (s.11 of the Equality Act 2010). In England, admission criteria are dependent on the funding agreement of each school type. In practice, religious schools of minority faith are almost always oversubscribed given that they represent a smaller proportion of faith schools. In contrast, Church of England schools, are in greater number due to their association with the established church and therefore are more likely to have places available for all applicants not just those affiliated with their faith.  

There are broadly speaking three categories of faith schools: voluntary aided, voluntary controlled and faith academies. Each receives a different type of state funding.

Voluntary aided (VA) schools receive funding for their day to day running costs from the local authority and the Department for Education (DfE) provides capital grants for major building projects. This typically covers 90% of the costs of the school while the remaining 10% must be met by the schools’ governing body. Voluntary aided schools design their own admission policy and if they are oversubscribed can give priority to applicants of their own faith.

Voluntary controlled (VC) schools also receive funding from the local authority to cover their running costs and staff salaries. While the local authority employs staff and is the main admissions authority, the school’s land and buildings are usually owned by a charitable foundation, and the local authority may consult with this foundation on admissions policy. Unlike VA schools, VC schools do not have to contribute to the costs of the school. As a result, admission policies may not always prioritize religious applicants. The local authority typically gives priority to those who live close to the school (proximity), those who have a sibling at the school, children in care and those with an Education Health and Care Plan.

Faith academies were introduced in 2000. Unlike VA and VC schools, their funding comes from central government rather than local authorities. The academy trust is responsible for how the money is used and they are accountable to the government for performance and financial management. They have more autonomy in their governance and operations compared to community schools as described above. Admission criteria are set out in their funding agreement, but academies are generally responsible for setting their own admission criteria. Like other faith schools, they can discriminate on the basis of faith when they are oversubscribed. Since 2007 however there is a 50% cap on religion-based admission to protect inclusivity. As a result, those schools may only select up to 50% of pupils based on religion when they are oversubscribed. The cap only applies to entirely new academies and free schools.  

In 2024, under the Conservative government, there was an attempt to scrap the 50% cap so that faith academies were no longer restricted but this was later abandoned due to a lack of public support and concerns about equality and discrimination by organizations that campaign for the abolition of faith schools such as the Secular Society. The primary motivation behind the proposal was to support the expansion of free schools by addressing the restrictions imposed by the current 50% admissions cap, which some faith groups view as conflicting with their religious obligation to prioritize children of their own faith. Critics of the proposed reform were particularly worried about the impact this would have on children with disabilities and more disadvantaged children generally as there is evidence that faith schools are less inclusive in relation to those children.

Admission criteria and Case Law

The UK school admission code 2021 provides statutory guidance on religious selection by faith schools and stipulates that faith schools are required to consult with their respective religious authorities when designing their faith-based admission criteria.  This was initiated following persistent concerns about faith schools’ policies and a number of judicial interventions. It has been argued however that ‘this complex intertwinement of religious and state authorities has led to an unjustified intrusion of the secular into religious matters’ (Myriam Hunter-Henin, 2018).

In order to be considered a priority applicant for the purpose of the oversubscription criteria applicants are usually required to demonstrate their belonging to the faith through a supplementary information form (SIF). Depending on the schools those requirements may be more or less stringent and as a result may exclude certain groups within the communities. In the UK, this was the subject of a Supreme Court case in 2009. In the JFS case, the UKSC held that JFS school, a modern Jewish Orthodox school had discriminated against the applicant on the basis of ethnic origin when he was denied admission due to his mother’s ethnic origin which was not deemed halachically Jewish as she had undergone a process of conversion. In other words, the applicant did not satisfy the matrilineal test used by JFS at the time to determine his connection with Orthodox Judaism.  Following the ruling, JFS changed its admission criteria to a point system based on religious practice rather than matrilineal descent. Those point-based systems however remain controversial as they might exclude certain applicants. This was recently put to the test in a High Court decision.

In CKT v. OSA, High Court of England and Wales examined whether a Church of England school was ‘indirectly discriminatory’ in relation to the protected characteristic of race. Twyford school provided for the allocation of an extra point (‘Church of England Point’) in their admission criterion for certain applicants: One point is awarded to applicants whose family’s main place of worship is at a Church of England church or Churches in Communion with the Church of England.

While the claim failed on the basis of race discrimination, the court nonetheless acknowledged [para 194] that faith-based admission criteria are likely to cause indirect discrimination. On this occasion the extra point was found to be a proportionate mean of achieving the school legitimate aim, in this case preserving an Anglican ethos.

As mentioned above, those who campaign to end faith schools however have highlighted that faith-based criteria lead to discrimination not only based on race but also disability and lower socio-economic backgrounds.

The case of France – limited public funding with controlled autonomy

In France, where article 1 of the Constitution provides for strict separation between religion and the state, the situation is completely different due to the principle of laïcité and the law of 1905 which prevents the state from remunerating religion. As such, state schools which are publicly funded must not be associated with religion, this includes funding, teaching and the display of religious symbols (Law of 2004 on the wearing of religious symbols at school). Schools with a religion denomination exist but they are usually within the private sector and do not receive state funding, with the exception of private schools called ‘sous contract’. Those schools have an agreement with the state which imposes certain conditions in exchange for funding.

Private schools under contract (‘sous contrat’)

Private schools may enter into agreements with the state, becoming ‘sous contrat.’ These schools receive public funding in exchange for adherence to the national curriculum and non-discriminatory admissions. Teachers are employed and remunerated by the state, and religious instruction must take place outside official school hours. While these institutions may retain a confessional ethos, they are prohibited from selecting students based on religious affiliation. 96% of private schools under contract are Catholic while the remaining 4% is made up of Jewish, Muslim, Protestant and secular schools. This model integrates faith schools into the public system under strict regulatory control, ensuring both access and accountability.

By contrast, private schools deemed ‘hors contrat’ do not receive public funding but enjoy complete autonomy over curriculum and admission (Loi Debré 1959). They currently only represent 4.4% of the student population but are increasing in number. Concerns have arisen regarding inadequate oversight, particularly within ultra-conservative or extremist institutions, leading to closures by the Ministry of Education. The French model thus demonstrates the state’s preference for regulation through funding.

Discussion: state funding as a limitation or safeguard?

State funding inevitably restricts religious autonomy, but it also ensures adherence to equality norms and protects the right to education.  Critics of faith schools, including Humanists UK and the National Secular Society, argue that faith-based admissions undermine social cohesion and perpetuate segregation. Data from the UK suggest that faith schools are more socially selective than non-religious schools, with disparities in Free School Meal eligibility reflecting socio-economic stratification. Nevertheless, advocates assert that faith schools contribute positively to moral development, community engagement, and academic performance. There is also evidence to show that faith schools have better academic results although this has been debated as some have argued that it is mainly as a result of socio-economic factors.

While state funding may indeed impose limitations on the autonomy of faith schools and religious communities, they can also provide a level of scrutiny and accountability by acting as a safeguard against potential discrimination, segregation or indoctrination. There is evidence to suggest that this has been an issue especially with schools which fall outside of public funding.

Ultimately, the challenge is to balance the competing interests of parents to educate their children according to their religious convictions and the interests of the general public to be protected from discrimination in education. If there was no public funding available, it may marginalize religious communities which are poorer. Left unregulated however, faith-schools and schools in general may pose a threat to children. There have been reported cases of gender segregation, failure to provide core curriculum teaching, safeguarding risks and exposure to extremist ideology.

Conditional funding therefore not only ensures fair distribution of public resources but can also be seen as a proportionate mean of achieving the legitimate aim of protecting tolerance and equality in a pluralist society. As such, it cannot be found in breach of the right to religious freedom.

The English exemption of allowing schools to give preference to applicants of their own faith when the school is oversubscribed seems reasonable as this usually affects schools of minority faith which make up for a small proportion of all faith schools. The imposition of strict quota in this instance would be counterproductive but in a schooling system where a third of all schools are faith-schools, the imposition of a quota on certain types of schools is a reasonable intervention to ensure public values are respected.

Conclusion

The comparative analysis of England and France illustrates how the relationship between religion and the state fundamentally shapes the administration of faith schools. In England, state funding is compatible with a degree of religious autonomy, yet the 50% admissions cap and related equality frameworks reflect the government’s ongoing attempt to balance inclusivity with respect for faith identity. In France, by contrast, the principle of laïcité establishes a stricter divide between state and religion, with public funding conditional on the renunciation of religious selection. Both models demonstrate that state funding inevitably imposes limits on religious freedom, but these limits serve an essential function in safeguarding equality, protecting children’s rights, and ensuring public accountability.

Ultimately, public funding should not be viewed solely as a constraint on religious schools but as a mechanism that reinforces pluralism within a democratic society. Conditional funding provides a means to reconcile faith-based education with universal principles of non-discrimination and social cohesion. The challenge for policymakers lies in maintaining this delicate equilibrium ensuring that religious diversity enriches, rather than fragments, the public education landscape.

Posted on by Mark Movsesian

Online Symposium: RFRA at 30 (Oct. 19, 2023)

I’m greatly looking forward to participating in an upcoming online symposium, “The Religious Freedom Restoration Act at 30,” sponsored by Emory’s Center for the Study of Law and Religion. I’ll present a paper on how the rise of the Nones will put pressure on the concept of religious exemptions. Details here. Register to listen in!

Posted on by Marc O. DeGirolami

Smith on Liberalism and Hate Speech

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Steven D. Smith (University of San Diego School of Law) submitted the following paper for Workshop 3, on hate speech, which we are delighted to publish here:

What is the relation between liberalism and the regulation of–or, conversely, the legal protection of–“hate speech”? And what if anything does the problem of hate speech tell us about liberalism?

I.

Hate speech is pretty much by definition vicious and hurtful, and a legal regime without “liberal” aspirations might have no prima facie reason to respect or protect it (assuming that it could be adequately defined). Conversely, a liberal government might extend constitutional protection to hate speech–for pragmatic reasons (slippery slope concerns, for example, or worries about overbreadth) but also for more principled reasons. More specifically, liberalism implies that people should have the freedom to do and say things that are objectionable or wrongful so long as they cause no harm to others.

“Harm,” to be sure, turns out to be a complicated–and often conclusory or question-begging–notion. Suppose Puritan is profoundly disturbed by his neighbor Pru’s practice of watching prurient movies in her basement. Puritan’s emotional distress may be real enough. And emotional distress is unpleasant; in other contexts it can constitute a compensable injury. But under liberalism, Puritan’s emotional distress in this context will not count as “harm”–or at least not as the cognizable harm that can justify a restriction on Pru’s liberty. Why not? We will say that Pru’s practice cannot be restricted because it causes no harm, but what we mean is that Puritan’s very real pain cannot count as harm here because (we know in advance) Pru’s liberty should not be restricted. We will express this foreordained conclusion by saying that Puritan’s “offense” or “hurt feelings” do not amount to cognizable “harm.”

But offense and hurt feelings are exactly the kinds of harm–or rather of non-harmful “hurts”–produced by hate speech (unless, that is, such speech goes beyond mere hatefulness by, for example, inciting listeners to violence). Or so it may seem. And on this view, there is no justification for regulating people’s ability to express themselves hatefully, no matter how worthless such speech may be.

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Pin on Hate Speech on the Web

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Andrea Pin (Padua) submitted the following paper for Workshop 3, on hate speech, which we are delighted to publish here:

“Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind.  On behalf of the future, I ask you of the past to leave us alone . . . You claim there are problems among us that you need to solve.  You use this claim as an excuse to invade our precincts.  Many of these problems don’t exist.  Where there are real conflicts, where there are wrongs, we will identify them and address them by our means.  We are forming our own Social Contract . . . We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity . . . Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are all based on matter, and there is no matter here.”

This is an excerpt from A Declaration of Independence of the Cyberspace.  The visionary thinker John P. Barlow proclaimed it in 1996 in Davos, Switzerland – the Sinai of globalization.  Barlow’s pride for what the cyberworld would become in the future was largely misplaced.  As many soon acknowledged, Barlow’s prophecy, that from online anarchy would almost spontaneously rise an order based on freedom, was wrong.  The cyberworld, after all, is just as much a part of our world as we are a part of it. 

Philosopher Luciano Floridi suggested we now live an onlife existence, in flux between the physical and virtual world.  Cyberspace cannot claim an independent life any more than we can claim our independence from it.  Our reputation, social relations, and political sphere take shape in an environment where cyberspace occupies a special place.  AI technologies affect how we perceive ourselves and others.

The issue is whether there is a sufficient public philosophy – or at least an intellectual framework within which our onlife sustains itself. As a recent book noted, 

“The medieval world had its imago dei, its feudal agrarian patterns, its reverence for the crown, and its orientation toward the soaring heights of the cathedral spire.  The age of reason had its cogito ergo sumand its quest for new horizons–and, with it, new assertions of agency within both individual and societal notions of destiny.  The age of AI has yet to define its organizing principles, its moral concepts, or its sense of aspirations and limitations.”[1]

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Madera on Religious Hate Speech in Europe

This past July, the Center co-hosted a conference with LUMSA University in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Adelaide Madera (University of Messina) submitted the following paper for Workshop 3, on hate speech, which we are delighted to publish here:

In modern multicultural societies, various groups claim visibility in the public space and an equal opportunity to manifest their views, values, and convictions, even of a religious nature. In Europe, since the release of Salman Rushdie’s Satanic Verses, further events, such as the Danish cartoons controversy and the Charlie Hebdo killings, have given rise to increasing skepticism and prejudice against religious minorities and emphasized the risk of a clash between religious freedom and freedom of expression. The crucial questions are whether and to what degree freedom of expression can be subject to restrictions to protect the religious feelings of the faithful and what are frontiers of freedom of expression. Hate speech could be entangled with freedom of religious expression, which could degenerate into a dangerous religious hate speech, aimed at offending those who do not share analogous convictions. However, the difficulty of defining hate speech has given rise to a proliferation of claims of hate speech. The risk is the rise of a culture of offence where everyone can claim a right not to be offended.

Indeed, the construction of a hierarchy between the two liberties concerned would provoke a constitutional conundrum as both concern fundamental rights. So a careful case-by-case balance is required, which takes into careful consideration all the circumstances of the case. Thus, not only should the content of the message be assessed, but also the expressive waysused. Furthermore, who speaks and who the audience is can make a relevant difference.

The search for such a balance acts as a stress test for domestic legal frameworks and emphasizes their inadequacy. At the moment, the notion of hate speech is extremely fluid in Europe, due to the lack of a uniform legislative approach. Although in many European countries there is a progressive dismantling of traditional blasphemy laws, which were based on a privileged link between the State and the predominant religion, various States are experiencing some difficulties abandoning regressive patterns aimed at highly protecting religion—preventing an offence against divinity—and moving toward models of protection of religious adherents (hate speech).

In Recommendation 1805 (2007), the European Parliamentary Assembly urged national law and practice to “permit open debate on matters relating to religion and beliefs” and not “privilege a particular religion in this respect, which would be incompatible with Articles 10 and 14 of the Convention,” and to “penalise statements that call for a person or a group of persons to be subjected to hatred, discrimination or violence on the grounds of their religion as on any other grounds.” Finally, a decriminalization of blasphemy is solicited. Despite these guidelines, states have struck disparate balances between free speech and freedom of religion, due to their various historical, political, and social background, exacerbating the political debate and giving rise to litigation.

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Posted on by Marc O. DeGirolami

Lugato on the International Legal Framework for Hate Speech and Its Limits

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Monica Lugato (LUMSA), who co-organized the conference with us, submitted the following paper for Workshop 3, on hate speech, which we are delighted to publish here:

1. Is ‘hate speech’ legitimately to be excluded from the scope of freedom of expression?Or is it protected speech? How does its admissibility or inadmissibility relate to liberalism? My short answer is that the legal regulation of hate speech is not incompatible with liberalism’s basic assumption about the priority of individual rights and the need to shield them from State interferences; provided an agreement on what ‘hate speech’ is; and provided that limitations to freedom of expression remain the exception to the fundamental right to freedom of expression. The international legal framework on freedom of expression provides a useful point of observation on how and to what extent bans on hate speech may be compatible with liberalism. So, first, I will briefly describe its main components, and then discuss its consequences for the debate on hate speech and liberalism.

2. International law protects freedom of expression, while also prohibiting what is currently called ‘hate speech’. Under art. 20, par. 2, of the ICCPR, Contracting States are required to prohibit by law any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. Under art. 4 of ICERD, Contracting States are required to “declare an offence punishable by law all dissemination of ideas based upon racial superiority or hatred,” incitement to racial discrimination and to acts of violence motivated by race, ethnic origin, and color. According to the same provision, they have to do so with due regard to freedom of expression. So, structurally, speech, or more broadly expression, as characterized in each of the two instruments, is not protected by freedom of expression. However, its legal prohibition has to respect the conditions established by international law for the limitation of freedom of expression: legality, necessity in the interests of enunciated public interests, and proportionality (art. 19 ICCPR).

The European Convention on human rights does not contain a specific provision on ‘hate speech’: its art. 10 protects freedom of expression (par. 1), and sets the conditions under which it can legitimately be restricted by the Contracting States (par. 2). The ECtHR has endorsed the ‘hate speech’ terminology in dealing with manifestations of freedom of speech, that, verbal or non verbal, allegedly stir up and justify violence, hatred, or intolerance. It has ruled that Contracting States can restrict such expression, under the criteria established by art. 10, par. 2: again, legality, necessity in the interests of enunciated public interests, and proportionality. In a few cases, it has held that certain allegedly extreme manifestations of freedom of speech are altogether excluded from the scope of the Convention (under its art. 17, prohibition of abuse of rights), as incompatible ratione materiae with it.

3. The monitoring bodies established by the three treaties have clearly recognized that freedom of expression is among the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfillment. They therefore also affirm that prohibited speech is to be construed as an exception to the rule on freedom of speech. For this reason, any limitations to freedom of expression under art. 10 ECHR, or measures adopted by States to implement art. 20, par. 2, ICCPR and/or art. 4 ICERD, have to remain within strictly defined parameters, have to be convincingly established, are subject to restrictive interpretation, and must not “put in jeopardy the core of right itself.” When the restriction does not satisfy those criteria, therefore, the expression, verbal or otherwise, is protected speech under the general rule. However, the practice of the monitoring bodies is hardly consistent with those standards. One may reasonably ask why.

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Posted on by Mark Movsesian

Rinella on Sharia in the State System

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Angelo Rinella (LUMSA) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:

Migration flows, whether for humanitarian or economic reasons, have profoundly changed the face of today’s European societies. Groups of different ethnic, cultural, and religious origins have been added to the communities originally settled in the territories of states. These newcomers are required to observe the existing rules to ensure peaceful coexistence and to comply with the established order. At the same time, the Constitutions of liberal and democratic states guarantee that minorities and individuals who are “different”—by social, economic, religious, and political condition—do not suffer any discrimination because of their diversity. In this context, some communities with a religion extraneous to the European religious tradition, such as Islamic communities, ask to regulate some of the affairs of their personal lives according to religious rules, as an alternative to the state civil law.

This demand for recognition of their own identity persists even in the face of state inertia. It produces the de facto formation of regulatory micro-systems that have in their effectiveness their legitimation principle. Micro-systems of norms that coexist in the same territory of the state and apply to certain groups of individuals settled in the same space of the state. Individuals who choose to regulate certain aspects of their existence according to different and alternative rules with respect to the state rules. In other words, the State loses the monopoly of the production of the rules in the State territory.

Anthropologists define this phenomenon in terms of ‘legal pluralism.’ For us, legal scholars, the scenario painted poses a number of problems and questions.

My opinion is that in front of such a scenario, rejecting or denying the problem would be the most detrimental and, all in all, inconsistent with the democratic, liberal, and social spirit of European constitutions.

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Martinez-Torron on Religious Exemptions

This past July, the Center co-hosted a conference with LUMSA University in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Javier Martínez-Torrón (Complutense) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:

The following ideas are not an attempt to cover the entirety and complexity of the issues raised by the claims for the so-called religious exemptions. They just try to emphasize some aspects that are often, in my opinion, not sufficiently considered in legal debates.

1. Taking the right approach

The very title of this session—Religious Exemptions—may be misleading. It obviously refers to situations where there is a conflict between conscience and law, that is, between moral obligations (not necessarily rooted in a religious conscience) and legal obligations. For the purpose of these brief reflections, I will refer to exemptions on moral grounds rather than to religious exemptions, considering that objections on religious and objections on other ethical grounds must be treated equally. In Europe, this type of conflict is often addressed under the term “conscientious objections.”

From my perspective, it is a mistake to analyze these conflicts from the perspective of legal exemptions, emphasizing that some people seek to be exempted from complying with the law on moral grounds (often deriving from religious beliefs). The term “exemption” suggests the existence of a privilege or an anomaly. And I profoundly disagree with the view that conscientious objectors are a “human anomaly” or seek privileged treatment. Such conflicts usually involve people with moral positions different from the majority. To consider that people in a religious/ethical minority are “anomalous” implies a prejudice incompatible with the contemporary notion of fundamental rights. And, certainly, we would not depart from that premise if we were dealing with other characteristics that define people’s identity and way of living, such as sexual orientation, ethnic origin, or physical deficiencies. Just the opposite, we assume that it is important to organize society, and the legal system, in a way that takes such characteristics into account so that those persons are not excluded or treated as second-class—“anomalous”—citizens.

In this regard, it is important to bear in mind two things. First, freedom of religion or belief is part of the applicable law in most countries. It is recognized and protected by international instruments as well as by most national constitutions, with one or other terminology. Such freedom entails not only the right to choose one’s beliefs but also the right to behave in accordance with them; that is, freedom of conscience, the right to act following the supreme rules dictated by one’s moral conscience.

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Posted on by Mark Movsesian

Davidyan on Liberalism and Religion

This past July, the Center co-hosted a conference with LUMSA University in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Gayane Davidyan (Lomonosov) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:

Slightly expanding the problem of our discussion, I will go beyond the borders of the United States and Western Europe, and pose a general question: arising on a certain soil under favorable historical conditions, is liberalism a national phenomenon, inherent only in a particular type of society or state? People with liberal views and values ​​live at all times and across the globe. Even in dark times, in conditions of slavery and serfdom, thinkers wrote about the values ​​of freedom and law; historical figures like Spartak, Emelyan Pugachev fought for this freedom.

As you know, the foundations of modern European liberalism begin to take shape in the 16th-17th centuries. John Locke, in “Two Treatises on Government,” formulates the most important principles that formed the basis of the future political and social liberalism: economic freedom as the possession and use of property, and intellectual freedom, including freedom of conscience. The second principle, in his opinion, is the right to life, personal freedom, and private property. People fought for a long time to obtain and assert these rights and values and are still fighting every day. The most advanced ideas of liberalism had a great influence on Russian reality at the end of the 18th century. Empress Catherine the Great, studying the ideas of Montesquieu, Cesare Beccaria, and Voltaire, wrote an order to the deputies of a special legislative commission in order to change the concept of royal power in Russia. Liberal ideas developed further and led to fairly liberal reforms in the second half of the 19th century. However, the reception of Western European liberal ideas in Russia did not take place. And against the background of a strong absolute monarch, all these reforms seem to be “quasi-reforms.” Does this mean that liberalism as a system of organizing social and state life can form the basis only for some states that have a special specific path of development, a special culture, and other features? I would not agree with this, since the desire for freedom, dignity, and the preservation of life are the basic needs of a person with any worldview, and one can hardly speak here about the advantage of one civilization over another.

But liberalism is not only ideas; it is also necessary that a sufficient social environment exist for their perception. In Russia, it was clearly insufficient. And here, the problem was rooted. The limited social environment made it impossible to realize the liberal concept. This was the reason why ideas remained ideas.

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Cavana on Religious Exemptions as a Problem for Liberalism

This past July, the Center co-hosted a conference with LUMSA University in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short discussion papers. Professor Paolo Cavana (LUMSA) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:

[1] Liberalism, both as a political doctrine and in its historical manifestation, has known several variants. This notwithstanding, there are certainly some common principles underpinning liberalism. Among these, we must include the primacy of the individual and the protection of his freedom against all forms of political oppression. It is no coincidence that liberalism was born and grew, in Europe and in Great Britain, starting from the Protestant Reformation. It represented a reaction to absolute Monarchies and to the concentration of powers they entailed. The different historical events of the United Kingdom and of continental Europe later marked a furrow in the development of liberalism doctrine and in its historical achievements, which also had effects in giving life to the peculiar American constitutional experience.

Among the main factors that marked the development of liberalism and its historical achievements, there is certainly religion, which has always played a fundamental role. Suffice it to say that the two English revolutions of the seventeenth century, which laid the foundations of liberal constitutionalism, were fought by Parliament in the name of religious freedom against the monarchy and its claim to impose a state religion on its subjects. On the contrary, the French Revolution, and the European liberalism that prepared it and followed it, taking into account the tragedy of religious wars, considered the Church and religion as an obstacle to civil and political progress. As such, both would eventually have to be overcome, or at least they were to be kept closed within the private sphere of individual conscience. This gave European liberalism the anti-religious character that has always differentiated it from the Anglo-Saxon one.

More generally, it can be said that European liberalism, which rests its foundations on the absolutist legacy of monarchies and on the theories of Montesquieu and J.J. Rousseau, since its inception, has always fought against social formations (Le Chapelier Act), considered to be a potential diaphragm between the individual and the State and a source of inequality between citizens. On the contrary, English and American liberalism has always viewed social formations – local communities, religious groups, and free associations – as an essential counterweight to the authority of the central State and hence a guarantee for citizens’ freedom.

It should also be noted that it was not religion in the abstract but in the concrete, that is, Christianity, which laid the groundwork for the birth of the liberal doctrine (B. Croce). In fact, neither the ancient world nor other religions or civilizations recognize – like Christianity, which germinated from Judaism, does – the role of human freedom even in the face of God. As a result, the act of faith can only be the fruit of human free choice, which is the very foundation of man’s dignity: “you have made him little less than a god, with glory and honour you crowned him,” says the psalmist (Psalm 8).

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